THE BRITISH LIBRARY & OTHERS v (1) MS K KAUR (2) MR J CANNON-DUSAUZAY [2008] UKEAT 0177_08_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0177_08_1806Case No Appeal No. UKEAT/0177/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE BRITISH LIBRARY & OTHERSAPPELLANT(1) MS K KAUR (2) MR J CANNON-DUSAUZAYRESPONDENT
Before
His Honour Judge Peter Clark Mr J Mallender the Hon theLord Morris of Handsworth OjDate 18 June 2008
[1]APPEARANCES For the Appellant MR T KIBLING (of Counsel) Instructed by: Ms A Williams Eversheds LLP Solicitors Senator House of Lords 85, Queen Victoria Street London EC4V 4JL For the Respondents No appearance or representation by or on behalf of the Respondents Debarred from taking any part in appeal SUMMARY UNLAWFUL DEDUCTION FROM WAGES Claimants off work pending outcome of grievance process. Judged unfit to return until process completed. Sick pay continued despite Claimants refusing to lodge sick notes in breach of Respondent's policy. Held by ET: entitled to full pay during relevant period. Decision was plainly wrong; Claimants were not ready willing and able to work. Appeal by Respondent allowed. HIS HONOUR JUDGE PETER CLARK Introduction The parties to these proceedings before the London (Central) Employment Tribunal were(1) Kuldip Kaur and(2) James Cannon-Dusauzay, Claimants, and the British Library (the Library), and six named employees, Respondents. By a reserved judgment with reasons dated 6 February 2008, an Employment Tribunal chaired by Employment Judge Sigsworth dismissed the Claimants' claims of unlawful discrimination, harassment and victimisation contrary to the Race Relations Act 1976 and upheld their claims of unlawful deductions from wages in part, that is for the period from 11 September (first Claimant); 9 September (second Claimant) 2006 until 28 February 2007. Against the findings adverse to them under the 1976 Act, the Claimants appealed, principally on the ground that the Tribunal was biased, or gave the appearance of bias against their cause. That appeal (PA/225/08/DM) was considered at the paper sift stage by Underhill J who directed no further action on the appeal under EAT Rule 3(7). We are therefore not concerned with the Claimants' appeal. The Library also appealed against the wages claim finding in favour of the Claimants. That appeal (EAT/0177/08/DM) was permitted to proceed to this full hearing at the paper sift by HHJ Reid QC. The Claimants failed to file an Answer, as directed by HHJ Reid's order dated 24 April 2008, despite an unless order made by the Registrar on 23 May: consequently, both were debarred from taking any further part in the appeal by a second order of the Registrar dated 2 June and have not appeared today. Background[2]Both Claimants were employed by the Library. During their employment, they raised a number of complaints of harassment and victimisation and a complaint that they were overlooked for promotion. They alleged that they were exposed to a hostile and intimidating working environment, such that both went off work complaining of work-related stress in early 2006, not returning to work until 19 April 2007.[3]Initially they provided sick certificates for the period up to 11 and 9 September 2006 respectively. At that point, the Library had embarked on a stage 2 investigation into their various grievances under its Harassment, Bullying and Discrimination Policy.[4]Pausing there, we see that the hearing before the Employment Tribunal commenced on 7 January 2008. The case had been listed for 15 days. On the second day, the first Claimant left the Tribunal room at a signal from the second Claimant, who then addressed the Tribunal as to its alleged bias towards them. He invited the Tribunal to recuse itself which, after consideration, the Tribunal declined to do. Thereafter, the Claimants took no further part in the proceedings. Rather than dismiss the claims under Rule 27(5) of the Employment Tribunal Rules of Procedure 2004 by reason of the Claimants' failure to attend, the Tribunal went on to hear evidence from five of the six named individual Respondents. In particular, they heard evidence from the second Respondent, Dawn Whelan-Smith. Ms Whelan-Smith held the post of Strategic Human Resources Manager with the Library at the relevant time.[5]Reverting to the wages claim, the subject of this appeal, the Tribunal found that the Claimants were entirely unco-operative with the process by which the Library sought to deal with their grievances by declining to attend meetings to give the details of their allegations and to clarify their complaints (reasons paragraph 25.8).[6]Mr Kibling, now appearing on behalf of the Library, has drawn our attention to the sequence of correspondence between Ms Whelan-Smith and the Claimants which was before the Tribunal, together with the Occupational Health Service reports of Dr Jill Haslehurst. In summary, both Claimants were referred to and saw Dr Haslehurst on 4 September 2006. That doctor answered the question, "Is the employee fit for work?" as follows; in the case of the first Claimant:
"Kuldip is not currently fit for work as she remains symptomatic. This is likely to continue until the work related difficulties are resolved and there is no medical solution to her ongoing symptoms."
Dr Haslehurst added:
"If Kuldip returns to work before resolution of the work related issues occurs, it is foreseeable that her stress related symptoms will recur or worsen."
Dr Haslehurst expressed a similar opinion in the case of the second Claimant; that he was: currently unfit for work due to stress related symptoms and that state of affairs was likely to continue until the work-related difficulties were resolved. If he returned to work before such resolution, it was foreseeable that the stress related symptoms would continue.[7]Having failed to persuade the Claimants to attend meetings to discuss their grievances, they were coming to the end of their full sick pay entitlement of 6 months pay in any 12 month period under the contractual sick pay scheme; thereafter half pay followed. On 20 November 2006 the Claimants wrote to Ms Reed at the Library, referring to Dr Haslehurst's reports, stating that they had been absent from work due to serious work related issues and had been advised not to return to work by Dr Haslehurst. Human Resources was investigating issues of victimisation, racism and harassment and clearly neither Claimant could attend work until these serious issues had been satisfactorily resolved. They pointed out that it is a common law contractual right that parties who are willing to work shall be paid.[8]Ms Whelan-Smith was asked to respond. She did so by letter dated 5 December 2006, pointing out that under the Library's Managing Attendance Policy the Claimants were required to cover all sickness absences from work with a current GP certificate; failure to do so would normally lead to the withholding of sick pay. She continued that, despite their failure to provide certificates the Claimants would continue to receive sick pay (dropping to half pay after six months) "as a means of not contributing to your concerns and issues".[9]By letter dated 22 January 2007, the Claimants asserted that their continuing absence from work was employment related, not "medical". They demanded full payment pending the outcome of the stage 2 grievance. That was concluded by a report dated 28 February 2007. Thereafter, the Claimants did not return to work, as we have observed, until 19 April 2007. Their claim for full wages during that period was rejected by the Tribunal. The Tribunal's Findings As to the relevant period between September 2006 and 28 February 2007, the Tribunal concluded (reasons paragraph 31.5) as follows:
"However, we have considered very carefully the Claimants' separate case under the Employment Rights Act 1996 for unauthorised deduction from their wages. We have concluded that the First Respondent [the Library] was not entitled to treat the Claimants as being off sick and pay them sick pay, however convenient that might have been. They were not, on the evidence, unfit for work when their sickness certificates expired in about mid September 2006. They could not return to work then in the light of the occupational health advice, which was that if they did return, unless the workplace issues had been resolved, then their symptoms might recur. The Respondents could have managed the situation very much better. The whole investigation process could have been speeded up and when it was clear from pretty much the outset that the Claimants were not going to co-operate with the investigation, it should have been brought to a swift conclusion, with interviews of relevant staff taking place quickly and briefly. The Respondents were acting outside their own procedure when they decided to treat the Claimants as sick without medical certificates. They could have approached Dr Haslehurst and sought her further advice on whether, if the Claimants were redeployed into a different area of the Library with different line managers, they were fit to return to work and, if Dr Haslehurst said that they were, then the First Respondent could have required them to return to work and discipline them for any unauthorised absence. Thus, we find that the period from the expiry of the medical certificates to the date that the report became available was a period when the Claimants should have been paid in full, and either required to attend work in the circumstances briefly outlined above or given 'garden leave' pending the conclusion of the investigation."
The Appeal[10]Mr Kibling refers us to s13 of the Employment Rights Act 1996 and submits, correctly, that the Claimants must establish a contractual or other legal right to full payment of wages before a finding of unauthorised deductions can be made. The basic principle is that the employee must be willing and able to work (see Warburton v Co-operative Wholesale Society Ltd [1917] 1KB 663).[11]On the facts of this case the Claimants were unwilling to return to work pending the outcome of their grievance (with which process, the Tribunal found, they failed to co-operate). They relied on the reports of Dr Haslehurst, which gave a clear opinion that they were not fit to return to work until the outstanding issues were resolved.[12]In these circumstances, he contends, the Claimants were absent from work without contractual authority. They were not entitled to be paid wages. They continued to receive sick pay even although they declined to provide sick certificates as required under the Library's sickness policy. They were offered work in another area of the Library but failed to take up that offer. The relevant claims, he submits, ought to have been dismissed.[13]We entirely accept those submissions. It seems to us that the Tribunal fell into error by asking themselves the wrong question. The question is not whether they were disentitled to sick pay in the absence of sick certificates after 9 or 11 September; it is whether they were willing and able to work. Plainly, they were not, relying on Dr Haslehurst's assessments, able to work; and that assessment was that they were not fit for work as at 4 September due to stress related symptoms and would remain so until work related difficulties were resolved. The Tribunal went on to criticise the Library for failing to speed up the investigation process when it became clear that the Claimants were not going to co-operate with the investigation. That failure on the Claimants' part cannot entitle them to pay for not attending work. The possibility of redeployment elsewhere in the Library was raised by Ms Whelan-Smith but not accepted by the Claimants. The Tribunal concluded that either the Library as employer ought to have required the Claimants to attend work or give them garden leave pending the outcome of the grievance process. Neither of these solutions, it seems to us, begin to address the question which is, were the Claimants legally entitled to pay when they were absent from work during the relevant period in the factual circumstances found by the Tribunal? In our judgment the answer to that question is plainly no. Whether or not they were entitled to sick pay is irrelevant to that question. In these circumstances, we shall allow this appeal and set-aside the findings of unauthorised deductions in relation to both the Claimants.